Justice for everyone: another Grayling reform bites the dust

Supreme Court bins the Government’s residence test for legal aid as ultra vires: just as the latest non-lawyer assumes the role of Lord Chancellor, the reforms made by the first non-lawyer to assume that role continue to fade away.

In April 2013, the Government announced it would introduce a residence test for civil legal aid funding under the provisions of the Legal Aid, Sentencing and Punishment of Offenders Act (“LASPO”) 2012. If you were not lawfully resident in the UK (or a Crown Dependency or British Overseas Territory) at the time of your application for legal aid, or for the last 12 months, you would not be eligible for legal aid.

The Public Law Project (“PLP”) challenged this residence test on two grounds: (i) the secondary legislation was ultra vires; and, (ii) the test was unjustifiably discriminatory, and has now been successful before the Supreme Court in doing so.

After a topsy-turvy trip through the courts, the case ended up before the Supreme Court who, in an apparently unprecedented step, announced it had decided the case after day one of the two-day hearing, and did not need to hear the discrimination issue. The judgment, written by Lord Neuberger, with whom the other six justices agreed, has now been handed down.

The mechanism by which the test was introduced was delegated or subordinate legislation. Through Acts of Parliament, the Legislature can confer on the Government the power to make to make certain laws. These are usually procedural matters but can sometimes be substantive ones and even, in some cases, amend primary legislation itself (“Henry VIII powers”). In the boxing ring of constitutional principles, that is the equivalent of the separation of powers watching on as parliamentary supremacy aims a knockout punch but only ends up hitting itself in the face. But if the delegated legislation falls outside of the scope of the power conferred by parliament, the Court will declare it to be ultra vires.

The residence test, set out in a draft order, was purportedly made under the provisions of section 9(2)(b) of LASPO. PLP argued that the exclusion of a specific group of people based on a characteristic (their residence status) did not fall within that power; that power concerned limiting the availability of legal aid based on the issue or services involved.

The Supreme Court agreed, and declared the draft order to be ultra vires, on simple principles of statutory interpretation.

First, on the natural meaning of the words of the statute, the draft order did not seek to “vary or omit services” (per section 9(2)(b)) but to reduce the class of individuals who were entitled to receive funding for those services based on a personal characteristic or circumstance.

Secondly, the wider statutory context indicated that the provision did not confer a power to make a residence test. The availability of legal aid was related to the type of issue or claim (see Part 1 of Schedule 1 of LASPO), and had nothing to do with personal circumstance or geographical residence. Some parts of LASPO did limit the right to receive legal services to one specific group of people, but those limits related to the issue in the claim (for example, to victims of an alleged wrongdoing).

Further, section 9(1) draws a clear distinction between the types of legal services (under subsection (a)) and the qualification of the individual (subsection (b)). Section 9(2), by contrast, only relates to the services. And a separate provision, section 11, deals with personal characteristics. It would be surprising, therefore, if parliament intended to confer on the Government such a power under section 9(2)(b).

The Court of Appeal allowed the Government’s appeal because it considered these sections in light of section 41(2)(b) which allows for orders, regulations and directions to be made by reference to “a particular class of individual”. But the Supreme Court were not impressed with that argument. Section 41 was to cover ancillary matters and could not come to the Government’s rescue.

The general purpose of the legislation – which the Lord Chancellor argued was to reduce the availability of legal aid to “the individuals who, and types of claim which, are most deserving of public support” – could not stop the PLP’s case. Section 9(2) was clearly about the type of services, and not the individual characteristic.

A victory for parliamentary supremacy and for access to justice; another embarrassment for Mr Grayling’s tenure as Lord Chancellor.

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